ORDER
V.K. Agrawal, Member (T)
1. The present appeal has been filed by M/s. Association for Developing Youth (India) against the order-in-original No. KDL/COMMR/23/97, dated 29-7-1997, passed by the Commissioner, Customs, Kandla.
2. Briefly stated the facts are that three consignments of old and used cloths had been imported and the name of the consignee shown was M/s. Association for Developing Youth (India) H. No. 29, Sector 4, Gurgaon, Haryana. Intelligence was received by the Directorate of Revenue Intelligence to the effect that imported old and used cloth were meant to be cleared free of customs duty claiming them to be meant for free distribution to the poor, but actually these were to be sold in the market. Investigation revealed that the address belonged to Shri Hitesh Kumar Sharma who, in his statement dated 4-6-1996, stated that he was the owner of the House No. 29, Sector 4, Gurgaon; that he had no connection with the said Association; that one Shri Gopal Krishna Sharma used to stay in his house and he had heard about Association from Sharma. Shri Sharma, in his statement dated 4-6-1996, stated that the consignment was sent by Shri Hardayal Singh on behalf of the International Social Welfare Society, U.S.A. Inquiries also revealed that the Association was registered with the Registrar of Society, Delhi and the registered address of the Association was 12/3, Saket Block, Mandawali, Fazalpur, Delhi and that Shri Gopal Krishna Sharma was neither an office bearer nor a member of the Association. The Commissioner of Customs, under the impugned order, confiscated the goods absolutely under Section 111(d) of the Customs Act, holding that Shri Sharma had no locus standi in the importation of the goods as he was not registered as an authorised representative of the real charitable institution whose address is different, whose authentic memorandum of association is different in which the name of said Sharma is not found either in the list of Governing Body of Members or Founder Members; that Shri Sharma has just tried to use the name of the Association in a fraudulent manner to import old and used garments which being a consumer item, cannot be imported except under licence as per para 156A of the EXIM Policy, 1992-97.
3. Shri G.K. Rawal, learned Advocate, submitted that the Association is a genuine charitable society and competent to represent the Association; that the Society registered at Delhi can have offices anywhere in India; that the Act is applicable all over the country subject to modification by the State Government; that in any case if intimation of change in address has not gone to the Registrar of Societies, it would not change the legal situation; that the goods were received from the philanthropic Society and were meant to be distributed to the poor and needy without any cost. He also submitted that Assistant Director, D.R.I. has no legal authority to issue the show cause notice as held in the case of Collector of Customs v. Poona Roller, 1997 (89) E.L.T. 604; that accordingly entire proceedings are vitiated in law. He also mentioned that Section 111(o) of the Customs Act is not applicable to the facts of the present case; that it is not open to the Commissioner to invoke any other provision i.e. Section 111(d) which will come into play only if a particular consignment has been imported contrary to the provisions of the Customs Act. He also mentioned that even as per the statement of the owner of the house, Shri Sharma has been residing in the premises at the address shown; that if there was no particular activity, it does not mean that the Association has vanished; that proper course for the Department would have been to permit clearance of the goods and keep an eye on the distribution of the goods. He further contended that according to Revenue, department had deputed a person to investigate bona fide of the donor but result was awaited; that it is wrong as during the period of import on 14-3-1996 and adjudication on 29-7-1997, almost year has gone and still outcome of the investigation was not known; that this would lead to the conclusions that the donor is bona fide and if investigation was in progress, the notice could have been postponed; that the Supreme Court has held in S.P. Chengalvarya Naidu v. Jagannath, (1994) 1 SCC 1 that any concealment of facts would lead to a fraud on the Court. Regarding the discrepancy in the copy of the Memorandum of Association given by Shri Sharma and the certified copy obtained from Registrar of Societies, he submitted that copy given by Shri Sharma was only a draft copy; that in any case discrepancies do not mean that the Society was not registered; that the very fact that Department obtained certified copies of Memorandum & Article of Association leads to the fact that the Society is a bona fide Society. He further submitted that contents of a bill of lading is presumed to be correct under the Bill of Lading Act and placed reliance on the decision in the case of Asiatic Steam Navigation Co. Ltd. v. Jethalal Dharamsin & Co., AIR 1959 (Calcutta) 479. He further mentioned that even if Shri Sharma used the name of the Society, goods cannot be confiscated. Relying upon the decision in the case of Jaswinder Singh v. Collector of Customs, 1996 (83) E.L.T. 175 (T), he submitted that statement of co-noticee or co-accused without any independent corroboration cannot form the basis of formation of a charge of involvement in smuggling activities.
4. Countering the arguments, Shri D.K. Nayyar, learned D.R., submitted that Shri Sharma was not authorised person for the Society registered at Delhi; that the question of change of address of the Society from Fazalpur to Gurgaon can not arise as two State Governments come into picture. He further submitted that the Appellants had not produced any correspondence with the donor abroad who had allegedly sent the goods; that no one from the Registered Office had come forward to claim the consignment in spite of doubts raised in respect of Shri Sharma, being authorized person and accordingly consignment has to be confiscated, being imported illegally. He also mentioned that the burden of proof on the customs authorities gets discharged if the false information is given by the appellants. He relied upon the decision in the case of Kanungo & Co. v. Collector of Customs, 1983 (13) E.L.T. 1486 (S.C.) in which the Apex Court held that “the burden was on the Customs Authorities which they discharged by falsifying in many particulars the story put forward by the appellant.” He further mentioned that the conduct of Shri Gopal Sharma was also not of a person who has imported the goods bona fide on behalf of a Society for charitable purposes; that he came to Gandhidham sometime in March, 1996 for taking delivery of the used clothes imported in the name of Association; that he gave certain documents also to the Intelligence Officer, Directorate of Revenue Intelligence; that when he was summoned to the office for further enquiry, though he promised to come to office after lunch, he did not turn up and on enquiry from hotel where he was staying, it was learnt that he had checked out in the afternoon itself and left in a hurry. Summon subsequently issued was also not honoured by him. Relying on the judgment of the Supreme Court in Collector of Customs v. D. Bhoormul, 1983 (13) E.L.T. 1546 (S.C.), the learned D.R. submitted that the burden of proof can be discharged by the Department on the strength of the circumstantial evidence. The Supreme Court held in the said case that “due regard must be paid to other kindred principles, no less fundamental of universal application. One of them being that the prosecution or the Department is not required to prove its case with mathematical precision, but what is required is the establishment of such a degree of probability that a prudent man may on its basis believe in the existence of the facts in issue.” The Supreme Court further held that the broad effect of the application of the basic principle underlying Section 106 of the Evidence Act to cases under Section 167(8) of the Act is that Department would be deemed to have discharged its burden, if it adduces so much evidence, circumstantial or direct, as is sufficient to raise a presumption in its favour with regard to the existence of the fact sought to be proved.”
5. The learned D.R. finally submitted that the Central Government, under Notification No. 19/90-Cus., dated 26-4-1990 conferred the powers of Assistant Collector of Customs on Assistant Director, Directorate of Revenue Intelligence. It is well settled law that the powers conferred by the Central Government would prevail. He relied upon the decision in the case of Deepak Woollen Pvt. Ltd., 1996 (82) E.L.T. 307 (T) wherein it was held that “the seizure of the goods as well as issue of the show-cause notice by the DRI could not be said to be without jurisdiction.”
6. We have considered the submissions of both the sides. We observe that after evaluating the evidence, the commissioner came to the conclusion that both Shri Gopal Krishna Sharma and the Association which had been shown as consignee in the Bill of Lading are bogus. The address of the Association as per certificate issued by the Registrar of Society is 12/3, Saket, Block Mandawali, Fazalpur, Delhi-92 whereas the address of the consignee shown was H. No. 29, Sector 4, Gurgaon. No proper answer has been advanced by the appellant as to why was a different address mentioned. There is no force in the argument that a Society can have office anywhere in India as it has not been shown by them by adducing any evidence that they had opened an office at the given address. Moreover the owner of the House at Gurgaon had stated that Shri Sharma used to stay in his house. The Commissioner has also found that the name of Shri Sharma was not found either in the list of Governing Body Members or Founder Members in the authentic copy of Memorandum of Association. It is not acceptable that the copy of Memorandum of Association was a draft copy as the Society was registered in 1986 and it is inconceivable that in 1996, after almost ten years, a draft copy of Memorandum of Association will be presented. We find substantial force in the contention of the learned D.R. that in spite of allegation made in the show cause notice against Shri Gopal Krishan Sharma and the clear-cut findings of the Commissioner in the impugned order no one from the Registered office had come forward to claim the consignment. We also observe that in appeal papers also the address of the Association has been shown to be H. No. 29, Sector 4, Urban Estate, Gurgaon. We also note that no correspondence had been brought on record to show that the Donor abroad had sent the goods to the Society registered at Delhi for charitable work. In view of the facts and circumstances of the case, we agree with the findings of the Commissioner that impugned goods have not been imported by the Society which is registered at Delhi having his office at 12/3 Saket, Block Mandawali, Fazalpur, Delhi and the goods have been rightly confiscated under the provisions of the Customs Act. We also agree with the findings of the Commissioner that wrong mentioning of provision does not vitiate the proceedings. It has been held by the Supreme Court in the case of C.C.E. v. Pradyumna Steel Ltd., 1996 (82) E.L.T. 441 (S.C.) that “It is settled law that mere mention of a wrong provision of law when the powers exercised is available even though under a different provision, is by itself not sufficient to invalidate that power.”
9. The Appellants have submitted that officers of DRI were not competent to issue the show cause notice and reliance was placed on the decision in Commissioner of Customs v. Poona Roller, 1997 (89) E.L.T. 604 (T). The Commissioner, in the impugned order has observed that the Poona Rollers case is not applicable to the facts of the present case as demand under Section 28 of the Customs Act was involved in that case whereas the present case deals with unauthorised import of goods. Section 4 of the Customs Act empowers the Central Government to appoint such persons as it thinks fit to be officers of Customs. In exercise of this power, the Central Government, under Notification No. 19/90 (N.T.) Cus, dated 26-4-1990, appointed officers of the Directorate of Revenue Intelligence as officers of customs. Assistant Director, DRI, Ahmedabad has been appointed as Assistant Commissioner of Customs for the State of Gujarat. Neither the provisions of Section 4 nor the Notification provide that such officers who are appointed as Customs Officers will not exercise the powers of issuing the show cause notice for confiscation of the goods under Customs Act. We also observe that the Tribunal, in Poona Roller’s case, was interpreting the provisions of Section 2(34) of the Customs Act relating to the definition of “Proper Officers” and relied upon Board’s Circular dated 14-5-1992 in which Board directed that the show cause notice for demanding duty for extended period of limitation shall continue to be issued by the Collector. In light of this circular, the Tribunal held that DRI officer was not a proper officer for issuing show cause notice invoking extended period of limitation under Section 28(1) of the Customs Act. This is evident from paragraphs 18-19, reproduced below :-
“18. Reading of the Circular re-produced hereinabove what the Board has done is nominating the Collector (now Commissioner of Customs) as the “proper officer” for the purpose of issuance of Show Cause Notice and Adjudication, when extended period is to be invoked for implementing the provisions contained in Section 28 of the Act. To put it the other way the Board which is empowered to designate a ‘proper officer’ vide Section 2(34) of the Act, have vide the said Circular, designated only the Collectors (now Commissioner) of Customs to the exclusion of all other officers, to be the “proper officer”, when the extended period is to be invoked.
19. The subject Notices have been issued from the Directorate of Revenue Intelligence and are signed by the Assistant Director, DRI, and are not issued from the Jurisdictional Collectorate of Customs, and signed by the said officer, on the order from the Collector of Customs, so as to construe them to have been in effect issued by the Collector of Customs.”
10. In the present matter the show cause notice has been issued under Section 124 of the Customs Act where the words. “Proper Officer” have not been used. Even the Tribunal in Poona Roller’s case held that “for a notice under Section 124 of the Act, there is no qualifying clause, like the one under Section 28(1), and as such any competent Authority could issue the same.”
11. In view of these facts and circumstances the appeal filed by the appellant is rejected.